Category: courts and court procedure

In all likelihood, most of the conjecture about Pistorius’ guilt is defamatory and the question is whether those defamatory statements are justifiable and that remains to be seen. If you are engaged in a debate about the case, it may be prudent for you to be measured in your statements and avoid potentially prejudicial declarations.

The Oscar Pistorius case has enthralled South Africans who are torn between supporting their hero and their disappointment at seemingly being let down by a South African icon. The discussion has practically overwhelmed my Twitter stream and people have expressed opinions on Pistorius’ guilt and innocence well before a court has reached any conclusions of its own.

While our Bill of rights gives us the right to express our opinions, our rights are not absolute and, in the context of defamation, the defamed person’s right to dignity often holds sway unless there are clear public policy reasons to allow the comments to stand. In this tragic case, Pistorius stands accused of murder but he hasn’t been found guilty. He is still, in our law at least, innocent. We don’t handle criminal law and leave the analysis of the criminal legal issues to the likes of David Dadic who is doing a far better job explaining some of the legal technicalities. That said, drawing conclusions about Pistorius’ guilt and publishing those conclusions online can lead to a defamation claim down the line.

In all likelihood, most of the conjecture about Pistorius’ guilt is defamatory and the question is whether those defamatory statements are justifiable and that remains to be seen. If you are engaged in a debate about the case, it may be prudent for you to be measured in your statements and avoid potentially prejudicial declarations. As William Booth, a criminal law attorney commented today for East Coast Radio –

“I can understand there [are] people that are expressing horror at what happened, there are also people who are supporting Mr. Pistorius and saying he should be released on bail,” he said.

“So everything, I feel, should be said and done in a proper and objective manner, and not that one gets carried away and say things that you may actually regret later.

The innocuous looking case of H v W which was handed down in the South Gauteng High Court on 30 January 2013 is anything but. Judge Willis’ 30 page judgment recognises the harm a Facebook post can do to a person’s reputation and throws the weight of the Court behind the person defamed (and who can afford the legal fees).

Update: Here are a few thoughts which are partly a summary and partly what I think is really interesting about this case. Be sure to read the post itself, though, there is a lot to unpack in this case.

The innocuous looking case of H v W which was handed down in the South Gauteng High Court on 30 January 2013 is anything but. Judge Willis’ 30 page judgment recognises the harm a Facebook post can do to a person’s reputation and throws the weight of the Court behind the person defamed (and who can afford the legal fees).

What the judgment says

Background

Judge Willis’ judgment begins with some background information (the names of the parties were redacted to prevent further harm). W (the “respondent”) published an open letter to H (the “applicant”) on Facebook “for public consumption” which included the following paragraph:

I wonder too what happened to the person who I counted as a best friend for 15 years, and how this behaviour is justified. Remember I see the broken hearted faces of your girls every day. Should we blame the alcohol, the drugs, the church, or are they more reasons to not have to take responsibility for the
consequences of your own behaviour? But mostly I wonder whether, when you look in the mirror in your drunken testosterone haze, do you still see a man?

Judge Willis continues and explains that –

The applicant is an insurance broker who is separated from his wife. The respondent had been a close friend of the applicant. This friendship extends back from the time before the applicant married his wife. In terms of a Deed of Trust, the applicant and his wife had jointly appointed the respondent to be the guardian of their three minor children in the event that both the applicant and his wife died or became incapacitated before their children attained their majority. The applicant had provided the respondent with guidance in starting her current business venture. The respondent had lent the applicant money to tide him over certain financial difficulties.

The applicant and his estranged wife are engaged in a divorce action. The applicant’s estranged wife is presently residing with the respondent. The applicant’s wife left him to stay with the respondent on 14 January, 2012. The applicant pays for the children’s medical aid, extra mural classes, stationery and a full time tutor to assist them. The three minor children born of the marriage between the applicant and his estranged wife are Z, born in 1997, M, born in 1999 and C, born in 2001. These minor children have been residing with the applicant for the last few months. The two minor daughters are both ‘friends’ on Facebook with the respondent. A ‘friend on Facebook’ is a ‘term of art’ to which I shall later refer. The applicant and the respondent were friends on Facebook but, consequent upon the applicant’s wife leaving him and moving into the home of the respondent, the applicant has ‘defriended’ the respondent.

The applicant complains that the posting in question publishes information which portrays him as:

(i) A father who does not provide financially for his family;

(ii) A father who would rather go out drinking than caring for his family;

(iii) A person who has a problem with drugs and alcohol.

The applicant’s attorney, in her letter dated 28 February 2012 addressed to the respondent, referred to the possibility of a claim for damages. The respondent claims that she posted the posting not to defame the applicant but in order for the applicant to reflect on his life and on the road he had chosen.

The law the Court relied on

The lawyers involved in the matter conducted what appears to be fairly substantial research on the law on defamation online and with reference to Facebook. Judge Willis relied fairly heavily on two academic articles by –

Associate Professor of Law at the New York Law School, James Grimmelmann (his article is titled “Saving Facebook” and can be found in the 2009 Iowa Law Review).

The Court quoted extensively from Roos’ article, largely as a means to understand Facebook and its mechanics. Although reliance on Roos’ article and her explanation of how Facebook works may not be integral to the judgment, it is unfortunate. Roos appears to have a fairly limited understanding of how Facebook and its privacy settings work and this gives the impression that activity on Facebook is unavoidably more public than it need be. One example of this is Roos’ explanation of Facebook’s primary privacy options:

In Facebook there are three privacy settings to choose from for information other than the user’s name, profile picture, gender and networks. Users can choose to make other information visible to “everyone”, or to “friends of friends”, or to “friends only”. It is important to recognise that a “friend” on Facebook is someone you have listed as a “contact” – such persons are not necessarily friends in real life.

…

Users can control their visibility to some extent by using the privacy settings to make personal information available only to friends, and of course by limiting the number of friends or contacts they add to their networks. In general, however, most users give out an extraordinary amount of information.

The last part about people sharing a lot of information is true, of course, but what Roos missed is that users can also share fairly selectively using Facebook lists which stand apart from the default “Public”, “Friends”, “Friends except acquaintances” and “Only me”. To be fair to Roos, though, her article was published in 2012 and Facebook’s privacy controls have changed since then and, in many respect, have become somewhat more secure in some respects, and have eroded protections like users’ privacy by obscurity. That said, she made a few good remarks about what I see as privacy’s contextual nature:

In the context of SNSs, one could argue that subscribing to an SNS and completing your profile information is similar to appearing in a public place. The Internet is a very public place, and Facebook clearly warns subscribers that their privacy cannot be guaranteed. However, in my opinion the privacy settings that one choose, should also be taken into account when considering whether a person has really chosen to disclose his or her information to an indeterminate number of persons. If you chose to reveal your personal information to “Friends Only” and if you limited the number of friends that you added, it could be argued in my opinion that you did NOT choose to reveal your information to an indeterminate number of persons. You have, in fact, revealed your personal information to a limited number of people. If one of your Facebook Friends then further discloses personal information that was provided by you in these circumstances, I would argue that you should have a delictual claim for infringement of privacy.

Roos made another important point to bear in mind when considering whether a person’s right to privacy has been infringed is similar to a defamation analysis (and which Judge Willis touched on in his judgment):

It should also be remembered that the wrongfulness of an infringement of privacy is negated by the presence of a ground of justification. Neethling identifies the following traditional grounds of justification as relevant to the right to privacy: necessity, private defence, consent to injury, and performance in a statutory or official capacity. Another ground of justification which is relevant to privacy is the protection of legitimate interests, including the public interest.

In the context of SNSs, consent is a particularly relevant ground of justification. Whenever the user discloses personal information on his webpage, he or she consents to the publication of that private information. However, in order to be valid the consent must meet certain criteria.

She then went on to discuss the parameters of the consent required to justify a privacy infringement. Essentially, consent must be informed although in light of the Protection of Personal Information Bill, we can adopt the Protection of Personal Information Bill’s defintion of “consent” as –

any voluntary, specific and informed expression of will in terms of which permission is given for the processing of personal information

Unfortunately Roos’ understanding of Facebook’s privacy controls and how it works, generally, is limited as expressed by her article and Judge Willis has accepted her explanation as a complete and accurate exposition of privacy on Facebook. This will likely, and unfortunately, colour future Court judgments regarding Facebook privacy issues. One inaccurate statement is Judge Willis’ understanding that –

Accordingly, although one can control one’s own Facebook profile but there is no method, within the Facebook system itself, by which one can control what other people place on their profiles about
oneself and who can look at that.

This is not really correct. Users have the ability to exercise a fair amount of control over whether other users can post their personal information and tag them (Roos seems to have largely misconstrued how tags can be restricted and controlled by the person being tagged).

After exploring Twitter briefly, Judge Willis turned to established case law in South Africa including authority for the proposition Roos expressed that a privacy infringement can be justified in a similar way that defamation can be justified and a more recent Supreme Court of Appeal judgment in the 2004 Mthembi-Mahanyele v Mail & Guardian case which, according to Judge Willis –

affirmed the principle that the test for determining whether the words in respect of which there is a
complaint have a defamatory meaning is whether a reasonable person of ordinary intelligence might reasonably understand the words concerned to convey a meaning defamatory of the litigant concerned

The test for determining whether words published are defamatory is to ask whether a ‘reasonable person of ordinary intelligence might reasonably understand the words . . . to convey a meaning defamatory of the plaintiff. . . . The test is an objective one. In the absence of an innuendo, the reasonable person of ordinary intelligence is taken to understand the words alleged to be defamatory in their natural and ordinary meaning. In determining this natural and ordinary meaning the Court must take account not only of what the words expressly say, but also of what they imply’

Referencing one of the justifications for (or defences to) defamation, namely that the defamatory material be true and to the public benefit or in the public interest, Judge Willis drew an important distinction that is worth bearing in mind –

A distinction must always be kept between what ‘is interesting to the public’ as opposed to ‘what it is in the public interest to make known’. The courts do not pander to prurience.

The Court moved on to explore another justification, fair comment. In order to qualify as “fair comment” –

the comment “must be based on facts expressly stated or clearly indicated and admitted or proved to be true”

The person relying on this justification must prove that the comment is, indeed, fair comment and “malice or improper motive” will defeat this justification or defence, regardless of its demonstrably factual nature. In this particular case, the Court found that W acted maliciously and she was unable to prevail with this defence.

The Court’s finding

Flowing from the Court’s finding that W’s Facebook post was defamatory and unlawful, Judge Willis considered a procedural issue. H instituted proceedings on motion, which means that H used an expedited approach relative to the more conventional trial action and sought a court order requiring W to remove the post and stop posting about H (the very simplied and incomplete version). Normally an applicant instituting motion proceedings would be asked to explain to he Court whether there is “an absence of similar protection by any other ordinary remedy”. W’s legal team pointed out (as respondents frequently do) that H could have sued her for damages (monetary losses) through a trial action.

Judge Willis considered this argument and took a pretty important step in developing the common law that governs these sorts of proceedings. He said the following:

It is in respect of the remedy where infringements of privacy take place in the social media that the common law needs to develop. The social media form a subset of the electronic media but are not coextensive with it: the social media are all part of the electronic media but not all the electronic media are social media. The electronic media were, almost certainly, beyond the imagination of the court when Setlogelo v Setlogelo was decided in 1914. Not only can items be posted and travel on the electronic media at a click on a computer in a moment, in an instant, at the twinkling of an eye, but also they can, with similar facility, be removed therefrom. This can also be done at minimal cost. The situation is qualitatively different from the scenario where newspapers have been or are about printed in hardcopy and distributed. The law has to take into account changing realities not only technologically but also socially or else it will lose credibility in the eyes of the people. Without credibility, law loses legitimacy. If law loses legitimacy, it loses acceptance. If it loses acceptance, it loses obedience. It is imperative that the courts respond appropriately to changing times, acting cautiously and with wisdom.

He went on to explain that –

[t]he historical reluctance of the courts to interdict publication in the media has its roots only in the issues relating to technology and economics that arise from ‘stopping the press’ but also a concern about the social consequences of stopping the free flow of news and information. This concern about the ‘chilling effect’ of court orders on freedom of expression has been manifested in the case of National Media Limited v Bogoshi recently decided in the SCA.

This is an interesting perspective. Just as social media accelerates the rate at which people can share (and remove) their thoughts, it also addresses the courts’ concerns about ordering that defamatory materials be removed from these social services because the costs involved are minimal. Ironically, though, litigation remains a pretty costly exercise so this must also factor into litigants’ cost analysis. For the courts, though, it would seem that the social Web removes an obstacle to judicial activism when it comes to defamation. Of course it isn’t just about the economics involved, courts will continue to assess the relative value of one party’s right to freedom of expression when weighed against the other other’s right to dignity, for example. As Judge Willis points out –

W’s advocate attempted to argue that H could take the matter up with Facebook itself as a violation of its terms and conditions but Judge Willis wasn’t convinced. He didn’t feel there was anything before him to “assure me that Facebook would comply with such a request”. He further noted James Grimmelmann’s argument that “it is better for the courts to focus on users rather than Facebook itself if intrusions on privacy are effectively to be curbed”. Essentially, “if one wants to stop wrongdoing, it is best to act against the wrongdoers themselves”.

Media reports about this case referenced the orders H sought against W which included a prohibition on W “posting any information pertaining to the applicant on Facebook or any other social media”. Judge Willis refused to grant this order as he said he has “no way of knowing for certain that there will be no cicumstances in the future that may justify publication about the applicant”. I think he made the correct decision there and this means that these complaints will have to be dealt with on a case by case basis with careful consideration of each case’s merits.

The Court also refused to grant orders placing W under arrest if she fails to comply with the order and that the Sheriff of the court be ordered to remove the offending post. Instead W was ordered to remove the posts and pay H’s costs. As a practical matter, Judge Willis made the following point:

Those who make postings about others on the social media would be well advised to remove such postings immediately upon the request of an offended party. It will seldom be worth contesting one’s obligation to do so. After all, the social media is about building friendships around the world, rather than offending fellow human beings. Affirming bonds of affinity is what being ‘social’ is all about.

A few more interesting points

Judge Willis went on to deal with public figures and the prospect of having to deal with a flurry of relatively minor complaints after this judgment.

With respect to public figures, he pointed out that while they enjoy a right to privacy, “[t]here is legitimate public interest in the affairs of public figures” and this means that they may not enjoy the same degree of protection as citizens not in the public spotlight when it comes to defamation online. As Judge Willis put it –

Trenchant commentaries on the performances of politicians as politicians, entertainers as entertainers, musicians as musicians, artists as artists, writers as writers, poets as poets, sports stars as sports stars will generally pass legal muster, even if posted in the social media. When it comes to freedom of expression in South Africa, there are oceans in which to swim and upon which to sail as freely as the wind blows.

When it comes to the prospect of being inundated by defamation claims (my words), the Court referenced the National Media Limited v Jooste case and Judge of Appeal Harms’ comments that –

the question of whether private facts are worthy of protection is determined by reference to ‘ordinary or reasonable sensibilities and not to hypersensitivities’.

Similarly, Grimmelmann has referenced the legal maxim de minimis non curat lex which Judge Willis translated as “the law is not concerned with trivia”. Ultimately, the cost of litigating, even when it comes to motion court proceedings of this nature, will stem the flow of applications to court. Litigation remains a costly exercise and this cost may not always be warranted, regardless of how hurtful the comments may be. This is especially so in the context of motion court proceedings where courts tend not to grant damages as relief because of how these motion court proceedings work.

Lastly, the judgment didn’t deal with another complication: the infamous Streisand Effect. This phenomenon kicks in regardless of your entitlement to protect legitimate rights. It has the ability to effectively negate the practical value of a court order such as the one Judge Willis granted and should always be carefully considered and weighed up against the risks in any matter. There are going to be cases where it is better to walk away and focus on damage control and other cases where it is worth risking the phenomenon and going to court. A critical factor will be whether the legal advice you take is adequately informed about not only the law but the social Web dynamics to form a better risk assessment before you pull the trigger.

This case is an important one. It advances the law dealing with social Web issues and, if it is upheld or applied by other (and higher) courts, it will change the tone for how courts will deal with issues like online defamation and privacy.

An American executive unsuccessfully sought to have her LinkedIn profile restored to her after her former employer appropriated her profile when she left the company. According to Internet Cases:

After plaintiff was fired as an executive, her former employer (using the password known by another employee) took over plaintiffs LinkedIn account. It kept all of plaintiff’s contacts and recommendations but switched out plaintiff’s name and photo with those of the new CEO.

Plaintive sued in federal court under the Computer Fraud and Abuse Act, the Lanham Act, and a slew of state law claims including identity theft, conversion and tortious interference. The former employer moved for summary judgment on the CFAA and Lanham Act claims. the court granted the motion, but continued to exercise supplemental jurisdiction over the state law claims.

The court described the facts as follows:

Eagle used her account to promote Edcomm’s banking education services; foster her reputation as a businesswoman; reconnect with family, friends, and colleagues; and build social and professional relationships. [Another employee] assisted Eagle in maintaining her LinkedIn account and had access to Dr. Eagle’s password.

After Edcomm got acquired, the new owner eventually terminated Dr. Eagle. The company immediately took over her LinkedIn account, changing the account’s login credentials and substituting in the name and photo of Dr. Eagle’s replacement. Unfortunately for Dr. Eagle, the court grants defendants’ motion to dismiss her federal claims based on the Computer Fraud and Abuse Act and the Lanham Act.

This case raises a few interesting questions and although the court did not deal with the remaining claims (and may arrive at different conclusions were considers those claims in due course), I found myself wondering what the legal position would be if a local employer attempted to appropriate a former employee’s LinkedIn profile when an employee leaves the company. This hypothetical employee would probably have 2 causes of action based on the LinkedIn User Agreement and the Electronic Communications and Transactions Act. A claim based on the LinkedIn User Agreement word, primarily, be directed at LinkedIn itself in the form of a complaint based on a violation of the User Agreement’s terms and conditions. A claim based on the Electronic Communications and Transactions Act would likely be based on the chapter 8 Cyber Crime provisions.

LinkedIn User Agreement

The User Agreement contains a number of provisions dealing with the basis on which a person may make use of the LinkedIn service and restrictions imposed on those usage rights. One of the initial provisions under the heading, Scope and Intent, states the following:

If you are using LinkedIn on behalf of a company or other legal entity, you are nevertheless individually bound by this Agreement even if your company has a separate agreement with us. If you do not want to register an account and become a LinkedIn User, do not conclude the Agreement, do NOT click “Join LinkedIn” and do not access, view, download or otherwise use any LinkedIn webpage, information or services. By clicking “Join Now,” you acknowledge that you have read and understood the terms and conditions of this Agreement and that you agree to be bound by all of its provisions. By clicking “Join Now,” you also consent to use electronic signatures and acknowledge your click of the “Join Now” button as one. Please note that the LinkedIn User Agreement and Privacy Policy are also collectively referred to as LinkedIn’s “Terms of Service.”

The User Agreement also requires users to agree to keep their passwords secure and confidential; not permit others to use their accounts as well as to refrain from using other users’ accounts. It goes on to further incorporate these restrictions into the rights LinkedIn grants users –

On the condition that you comply with all your obligations under this Agreement, including, but not limited to, the Do’s and Don’ts listed in Section 10, we grant you a limited, revocable, nonexclusive, nonassignable, nonsublicenseable license and right to access the Services …

The User Agreement doesn’t allow for much of what happened in this particular case. Dr Eagle should not have shared her login credentials with her colleague (during this was a violation of the User Agreement and would have entitled LinkedIn to remove her account or otherwise deny her access to the service) and her colleague was not entitled to assist the company in taking over her account and changing the profile’s details to the new CEO’s.

The Electronic Communications and Transactions Act

Section 86 deals with “Unauthorised access to, interception of or interference with data”. This section criminalises efforts to overcome security measures designed to protect data, which includes password to access codes, or accessing that date. This is, arguably, what Dr Eagle’s colleague did on Dr Eagle’s former employer’s behalf. Although Dr Eagle gave her colleague access to her LinkedIn profile, it appears that the extent of that authorisation (although not permissible in terms of the User Agreements) was to assist in managing their profile on Dr Eagle’s behalf.

Appropriating Dr Eagle’s LinkedIn account for the benefit of a new CEO exceeds the parameters of this authorisation Dr Eagle granted to her colleague, is likely a criminal act under the Electronic Communications and Transactions Act (were this case to be adjudicated by a local court under this Act) and may even be a violation of a number of other rights Dr Eagle had in the profile content. Depending on the content of the profile after its misappropriation, the company may even have attracted liability on the basis of unlawful competition, privacy violation and so on.

This scenario touches on concerns companies have regarding employees who establish prominent profiles using social services like LinkedIn, who subsequently leave the company and may be in a position to leveraged those profiles for the benefit of a competitor or even for their own benefit as they engage in potentially competitive business activities. The actions taken by the company in this particular case or highly problematic for a number of reasons which I have mentioned in this post and highlight the importance of some sort of agreed contractual framework between employers and their employees regarding ownership of the social profiles and the extent to which a company may wish to lay claim to those profiles. From an employee’s perspective, it is a good idea to draw a distinction between a personal profile and a profile dedicated to promoting the employer’s business. In some respects, this is similar to employees limiting their personal correspondence to personal email accounts and only making use of their business email accounts for business purposes.

I’m interested to find out how the court in this particular case rules on the additional state law claims Dr Eagles has brought against her former employer. Although this sort of case is yet to reach our courts (although our courts have already dealt with a situation where a former employee breached the terms of his restraint of trade and this was partly evidenced by his activity recorded in his LinkedIn profile). Employers are seeking to appropriate their employees’ LinkedIn profiles may well encounter a number of difficulties ranging from violations of LinkedIn’s User Agreement to unlawful conduct and various pieces of legislation and infringements of employees’ rights, generally.

Judge Esther Steyn, sitting in the Durban High Court, made history yesterday when she approved service of court documents on Peter Odendaal, a defendant in a trial action in that court. It appears from a report on IOL that Mr Odendaal’s attorneys withdrew from the matter and did not leave a current address for Mr Odendaal for further service. What is supposed to happen is that the other parties to the proceedings should be advised where they can serve further court documents on a party whose attorneys have withdrawn from the case.

This left the plaintiff, CMC Woodworking Machine (Pty) Ltd, in a difficult position. It had no apparent way of serving further court documents on Mr Odendaal who appeared to be evading service in the hopes that this would scuttle the litigation against him. I wrote about the possibility of courts allowing court documents to be served on litigants using social services like Facebook in a post titled “Serving court process via Facebook” about 2 years ago. If you are interested in the procedural issues involved, take a look at that post.

What has changed since then is that the court rules for the High Courts have been changed with effect from 27 July 2012. One of the changes is to extend Chapter 3 of the Electronic Communications and Transactions Act to service of court documents on litigants by email or fax. Chapter 3 deals with the legal requirements of data messages and communications using data messages. Section 11 states the following:

“Legal recognition of data messages

11. (1) Information is not without legal force and effect merely on the grounds that it is wholly or partly in the form of a data message.

(2) Information is not without legal force and effect merely on the grounds that it is not contained in the data message purporting to give rise to such legal force and effect, but is merely referred to in such data message.

(3) Information incorporated into an agreement and that is not in the public domain is regarded as having been incorporated into a data message if such information is –

(a) referred to in a way in which a reasonable person would have noticed the reference thereto and incorporation thereof; and

(b) accessible in a form in which it may be read, stored and retrieved by the other party, whether electronically or as a computer printout as long as such information is reasonably capable of being reduced to electronic form by the party incorporating it.”

A “data message”, in turn, is defined pretty broadly and “means data generated. sent. received or stored by electronic means”. It includes voice recordings where they are used in an automated transaction and a “stored object”. When it comes to serving court documents on litigants, I’ll quote from my previous post:

As you can see, these rules are pretty specific and are designed to ensure that court process reaches the relevant party’s attention while, at the same time, not making it too difficult for the party bringing the proceedings to actually serve the court process. On a related point, some of my clients sometimes find themselves on the receiving end of court process and ask whether they should accept the documents from the sheriff. I usually advise them to accept the documents because it is generally far more beneficial to receive the documents and be in a position to deal with them than have them served on some address or in some form that doesn’t being them to your attention. The result of not being made aware of service can be default judgment.

The rules also deal with the procedure to be followed if service can’t be achieved in the ordinary course. This alternate process is called substituted service. The party trying to serve the court process must obtain the court’s permission to serve court process in some other way and this means bringing an application to the court concerned in which the applicant must make a series of allegations. These allegations are usually the following:

nature and extent of claim;

grounds upon which the claim is based;

grounds upon which the court has jurisdiction;

method of service;

last known location;

that the applicant has tried the usual methods and has tried to locate the respondent but without success.

If the court is satisfied that the applicant has done what it can to locate the other party and serve the court process on it, the court can permit the applicant to serve the court process using another medium. These alternatives often include the Government Gazette, local papers or even by delivering the court process to family members. These methods can also include some form of digital notification or delivery if the court is satisfied they would be effective and appropriate.

Given one of the rationales for the rules regarding service being to bring court documents to the other party’s attention and the amendments to the rules to incorporate recognition of data messages, extending the rules to service using Facebook makes a lot of sense:

Service using a social media service like Facebook has a number of advantages. For one thing, many Facebook users probably spend more time in Facebook than reading newspapers or checking the Government Gazette for ads mentioning them. A notification via Facebook is very targeted (well, assuming you have the right Facebook profile which is maintained by the person you seek) and perhaps more likely to reach that person’s attention than an ad in the legal classifieds. Another benefit to using Facebook is that there is a good chance a person with decent access to the Internet has a Facebook account.

Service using Facebook could involve sending a message to the person with a link to the court papers (Facebook messaging doesn’t really allow for attachments). Service using Facebook should probably be done in conjunction with other service options like email, newspaper ads and so on but it could be the most effective in the right circumstances.

In this particular case, Judge Steyn also ordered a publication in the local newspaper, which is common practice for substituted service. I look forward to Judge Steyn’s reasoning on Friday and wouldn’t be surprised if she follows a similar thought process. Whatever her reasoning, this is an important decision and we can look forward to more innovations in our court procedure going forward.

Update (2012-08-06):Gavin McLaughlan at Randles Attorneys very kindly sent me a copy of Judge Steyn’s judgment this morning. It makes for interesting reading and the judge seems to follow similar reasoning to the reasoning I outlined in this and my previous post. I recorded a quick explanation of the judgment here:

A storm over Netdynamix’s reported listener statistics has erupted after Shaun Dewberry, a self-described “digital rockstar with a passion for rock music (especially South African), motorcycles (especially Superbikes), and life hacking (especially nmap)”, published a report titled “The Truth Behind Streaming Internet Radio In South Africa” challenging Netdynamix’s reported statistics. NetDynamix is an audio streaming service provider and services online radio streaming channels including the popular 2OceansVibe Radio and Ballz Visual Radio. According to Dewberry:

There is a growing hype being spread of streaming radio’s massive and escalating success as an alternative to terrestrial radio in South Africa. The reports available suggest listeners are taking to the medium like fish to water. 2Oceansvibe Radio has a new second studio in Melrose Arch. Ballz Radio is leveraging a network of sports personalities to grow content and listenership.

2Oceansvibe Radio now states they have up to 60 000 listeners an hour. Ballz Radio, after two months online, claims in the region of 51 000 listeners between 12 and 6pm. Even smaller community stations such as KingfisherFM were up to 20 000 monthly listeners in March.

Sponsors and advertisers clearly need to jump on board this segment that is now beating down terrestrial radio.

So what is the reason behind this amazing growth in the sector?

The falling cost in broadband? Increase in mobile access to Internet? A general dissatisfaction with terrestrial radio?

In my professional (and personal) opinion, I state that there is only one explanation for these proclaimed levels of listenership – they are complete fabrications. Utter nonsense. Lies, even.

We’re working through the reports, responses and articles about this and will expand on this post with an analysis of the issues and the legalities involved in the next 2 days. We also plan to host a Hangout on Friday where we will discuss the story a little further. Keep an eye on this post and check back for updates on Friday.

Analysis

Nastassja at Jacobson Attorneys analysed the issues a little further and prepared this follow-up:

Shaun Dewberry published a report on 25 June 2012 in which he claimed that NetDynamix’s figure for online radio figures “are complete fabrications. Utter nonsense. Lies, even.” His report followed a report about listenership issued by NetDynamix in which they claimed listenership for some of its client radio stations that went into tens of thousands. NetDynamix then responded in a press statement saying they have no reason to inflate the listener numbers as they do not charge on a pre-listener basis.

On 26 June 2012 NetDynamix issued a letter of demand to Dewberry demanding him to remove his report from his blog and also to remove his comments from Facebook and Twitter. The demand letter further stated that if he failed to remove his report and statements as demanded that he could face the risk of an urgent High Court interdict application against him and a claim for damages for any financial loss suffered by NetDynamix.

The first issue is what does this letter of demand seek to achieve and what are the possible consequences of failing to fulfil the demand.

A letter of demand is a document which should always try to be used before legal recourse is sought. The purpose of such a demand is to request from the recipient payment or performance of a legal obligation and to persuade the recipient to pay the amount claimed or to settle the dispute without the necessity of expensive, time-consuming litigation and a trail.

Dewberry failed to remove his blog post or social media statements. The possible implication of his failure to comply with the demand is set out as follows in the letter of demand:

NetDynamix will launch an urgent High Court interdict application against Dewberry, with the implication that the High Court will be asked to simultaneously order that all of the legal cost incurred by NetDynamix will be paid by Dewberry.

Claim damages from Dewberry for any financial loss that our client may suffer as a consequence of Dewberry’s alleged defamatory publications of and concerning NetDynamix.

The procedure concerning the above:

A normal interdict is brought using the motion procedure. In our law of civil procedure there are two basic procedures namely the motion procedure and the action procedure. The main difference between the two civil procedures lies in that if there is a dispute of fact the action procedure must be followed as opposed to a matter where there is no dispute of fact where the motion procedure is then used.

The motion procedure is a procedure where the matter is argued on the papers and no oral evidence is usually allowed. An interdict is brought using the motion procedure and it involves a process where papers and documents are passed back and forth between the parties preceding the motion trail. There are specific time limits for the exchange of such papers and it can involve a lengthy pre-trail phase. However, when an urgent interdict is sought, as in the present matter, the court basically dispenses with these time limits as well as with other rules regarding litigation. The reason for this is that by following the time periods the urgency of the matter will not be address and the matter needs to be resolved as soon as possible to prevent further harm from being caused. However, if an urgent interdict is granted to NetDynamix it only serves as a temporary solution and an order granting an urgent interdict contains a return date upon which the parties need to return to make the order final. The process can become time-consuming and costly.

Defamation

The legal issue at hand is that NetDynamix is attempting to interdict Dewberry to take down his blog post and social media comments because NetDynamix feel that by the blog report and the social media comments it is being defamed.

Defamation essential entails that we all have a right not to be defamed unlawfully. In other words, we all have the right not to have our reputation lowered in the eyes of a reasonable person without a justifiable reason. The legal definition is the intentional infringement of another person’s right to his goos name, or the wrongful, intentional publication of words or behaviour concering another person which has the effect of injuring his status, good name or reputation. In the case of a corporation such as NetDynamix the reputational issue translates into a loss of profit caused by the defamatory statements.

The test for demation is called “the objective reasonable person test” and works as follows:

A reasonable person is fictional normal, well-balanced and right-thinking person with normal emotional reaction and a person of average intellect and knowledge, in other words, not a person with expert knowledge on defamation.

Therefore, would a reasonable person, judge objectively, have thought that NetDynamix’s reputation was damaged by the report written and statements made by Dewberry. Then if it has been established that a reasonable person would consider it to be defamation the next step in the test is whether the defamation can be justified. Justification takes the form of exceptions to defamation, in other words if NetDynamix can prove that the publication is defamatory it must prove that the publication was wrongful.

Defences and Justifications

Truth and public interest

If Dewberry can prove that his report was true and that he published the report in public interest. However, an interesting further exception is one called “media privilege” or “reasonable publication of untruths”. What this entails is the reasonable publication of false or untrue defamatory statements by the media. For Dewberry to succeed in using this defence it must be established that he is considered to be part of the media. Other factors such as public interest, the nature of the publication and most importantly the tone of the allegations are considered. Further aspects include, the nature of the mass medium used, reliability of the information and the steps taken to verify the information.

Ultimately the test will be to balance two conflicting rights namely NetDynamix’s right to not be defamed and Dewberry’s right to freedom of expression. This balancing will be done by a court of law and it is impossible to determine which right is superior before carefully considering all the fact and factors of the case.

Just to summarise everything

If NetDynamix decide to go ahead with obtaining an urgent interdict it must prove that it is a matter of urgency to justify doing away with the normal time periods and rules regarding the application procedure. However, if NetDynamix are granted an urgent interdict it will only serve as interim relief and a final interdict will have to be obtained which could become time-consuming and expensive.

It will be very interesting to see how the courts will deal with a matter like this in our ever growing web and social based lives. And some of the challenges that the courts will face enforcing an interdict (like in this matter) will be how to quantify the damages to compensate for the possible loss of profit suffered by NetDynamix as the internet has almost infinite reach and it could become challenging to determine the impact of the publication. A further hurdle which the courts may face in enforcing the interdict is the fact that trying to remove something from the internet is like trying to remove pee from a pool. It would be very difficult to remove the report as well as the Twitter and Facebook comments as the news has been spread so far and wide by now that it becomes almost impossible to prevent people from viewing it. To tie into that, a phenomenon which has been starting to merge in similar cases to this one is something called the “Streisand-effect”. The just of this is that in attempting to manage your online reputation by attempting to remove information or statements, etc more attention is brought to whatever it is that you are trying to remove, with the effect that it has the complete opposite effect than what it was attempting.

Background

If you have missed the controversy that arose in the last few days about a depiction of President Zuma with his penis exposed called “The Spear”, this is what it is all about:

The painting is part of an exhibition by Brett Murray called “Hail to the Thief II”, a sequel to his 2010 series “Hail to the Thief”. It is currently on display at the Goodman Gallery which describes the exhibition as follows:

Established Cape Town based artist Brett Murray returns to Goodman Gallery Johannesburg with Hail to the Thief II. This body of satirical work continues his acerbic attacks on abuses of power, corruption and political dumbness seen in his 2010 Cape Town show Hail to the Thief. In this sequel show, Murray’s bronzes, etchings, paintings and silk-screens form part of a vitriolic and succinct censure of bad governance and are his attempts to humorously expose the paucity of morals and greed within the ruling elite.

The ANC and Presidency Responds

The ANC was outraged by the depiction of the President and other works in the exhibition criticising the ANC for, among other things, its apparent corruption and emphasis on material wealth. The ANC released a statement on 17 May which reads as follows:

ANC outraged by Brett Murray`s depiction of President Jacob Zuma

17 May 2012

The African National Congress is extremely disturbed and outraged by the distasteful and indecent manner in which Brett Murray and the Goodman Gallery in Johannesburg is displaying the person of Comrade President Jacob Zuma.

This disgusting and unfortunate display of the President was brought to our attention by one of the media houses and we have physically confirmed this insulting depiction of the President. We have this morning instructed our lawyers to approach our courts to compel Brett Murray and Goodman Gallery to remove the portrait from display as well as from their website and destroy all printed promotional material. We have also detected that this distasteful and vulgar portrait of the President has been displayed on a weekend newspaper and its website, we again have instructed our lawyers to request the said newspaper to remove the portrait from their website.

It is in our view and we remain steadfast in that the image and the dignity of our President as both President of the ANC, President of the Republic and as a human being has been dented by this so-called piece of art by Brett Murray at Goodman Gallery. We are also of the view that this distasteful depiction of the President has violated his individual right to dignity as contained in the constitution of our country.

The same gallery has displayed the logo of the ANC without the permission of the ANC, with the inscription FOR SALE on it, both these portraits are a clear calculation to dismember and denigrate the symbols and the representative of the ANC, chief amongst them, the President of the ANC.

The ANC believes in both freedom of the press and artistic expression. The vulgar portrait and the dismembering of the ANC logo by Brett Murray is an abuse of freedom of artistic expression and an acute violation of our constitution, apart from being defamatory. That is why we have instructed our lawyers to approach the courts in-view of these violations and the defaming nature of the so-called President Zuma portrait titled ”The Spear”.

Presidency disgusted at violation of President Zuma’s rights

The Presidency is shocked and disgusted at the grotesque painting by Brett Murray depicting President Jacob Zuma in an offensive manner.

We are amazed at the crude and offensive manner in which this artist denigrates the person and the office of the President of the Republic of South Africa.

The Presidency is concerned that Brett Murray fails to appreciate that freedom carries a deep responsibility. The President was amongst the primary architects of our Constitution and shall defend the rights enshrined in our Bill of Rights, including the freedom of artistic expression. However, in exercising these rights, people should at all times be conscious that they are not absolute.

Nobody has a right to violate the dignity and rights of others while exercising their own. Other than his position as Head of State and as President of the ruling party, President Zuma as a citizen has a right to human dignity, which is enshrined in the Constitution of the Republic. No human being deserves to be denigrated in this shocking manner.

We are also concerned that the painting perpetuates a shocking new culture by some sections of the artistic world, of using vulgar methods of communicating about leading figures in the country, in particular the President.

Intense hatred of the new democratic administration or the ruling party should not translate into distorting South Africa’s value system of emphasising respect and of ensuring that disagreements are expressed in a cultured and civilised manner, which these artists are failing to do. It is shocking as well that some media houses find this distasteful work worth displaying on their websites and are eager to publish it repeatedly.

The President reserves his rights in this matter.

Enquiries: Mac Maharaj on 079 879 3203.

Issued by: The Presidency
Pretoria

The Goodman Gallery and the City Press Resist

Both the Goodman Gallery and the City Press, which published a photograph of the image, have refused to accede to the ANC’s demands that the images be removed, the art itself removed from view and all promotional materials relating to the work, stating that doing so would amount to censorship. Ferial Haffajee wrote a column which appeared in the City Press in which she explained the paper’s position. Here is an extract of her column which is worth reading in its entirety:

Did we think the image of President Jacob Zuma by Brett Murray was particularly beautiful to persuade us to publish it? No.

Would it be something I would hang at home? No.

There is a copy stuck on my office window, along with two others from Murray’s explosively angry exhibition of satirical graphic art.

Murray, now facing a demand from the governing ANC that he destroy the work, designed some of the anti-apartheid movement’s most iconic resistance art.

…

Our Constitution explicitly protects artistic expression as a subset of free expression, to which its detractors will respond as they have all week: they draw the line at art that impugns presidential dignity.

But I’ve learnt that the commitment to clauses like free expression (be it in art or journalism) is never going to be tested by still lifes of bowls of flowers or by home decor magazines.

It is always going to be tested by art that pushes boundaries and journalism that upsets holy cows, which is why our clever founders enshrined the right in our Constitution.

They knew our artists and journalists would, if we stayed true to the founding South African DNA of questioning and truth-saying, need protection.

In the past week – and in the one to come – we will hear again this clash of free expression and dignity.

Not convinced, the ANC served an application on the Goodman Gallery and the City Press seeking to interdict them from “displaying and exhibiting on their website or any other platform including the online channels the offensive and distasteful so-called portrait”. What the ANC doesn’t seem to realise just yet is that its application, due to be heard in the Johannesburg High Court on Tuesday at 12:00, has already failed.

For one thing, the ANC is almost certainly on the wrong side of the law in this matter. As always, Constitutional law expert, Pierre De Vos, has published a somewhat sarcastic but insightful article on some of the reasons the application will fail. His post is titled “On the President, his penis, and bizarre attempts to censor a work of art” and is a must-read if you are interested in some of the legalities that will likely be considered including the following considerations:

The ANC may not be aware of the fact that section 16(1)(c) of the Constitution states that everyone has the right to freedom of expression, which includes ”freedom of artistic creativity”. It is true that no right is unlimited but even where the right to free expression is limited an exception is usually made for artistic expression. Our law often distinguishes between real depictions of individuals and art works and hardly ever allows for the censoring of the latter. For example, section 12 of the Promotion of Equality and Prevention of Unfair Discrimination Act (which prohibits hate speech) explicity makes an exception for a “bona fide engagement in artistic creativity”. Section 3 of the Film and Publications Act contains a similar exception.

The fact that the ANC seems incapable of distinguishing between a work of art and real life will probably ruin their legal case they are planning to launch. The ANC statement says that it has instructed its lawyers to approach the courts to compel Brett Murray and Goodman Gallery to remove the portrait from display as well as from their website and to destroy all printed promotional material relating to the work. But given the protection for artistic freedom in the Constitution and the many exceptions in our law made for the expression of such artistic creativity, I am am almost 100 percent certain that the ANC’s proposed legal action will not be successful. In a democracy, courts seldom order the censoring of a work of art – even if that work of art makes fun of the President and his philandering patriarchal ways. …

The Streisand Effect Strikes Back

The Streisand effect is a primarily online phenomenon in which an attempt to censor or remove a piece of information has the unintended consequence of causing the information to be publicized widely and to a greater extent than would have occurred if no censorship had been attempted. It is named after American entertainer Barbra Streisand, following a 2003 incident in which her attempts to suppress photographs of her residence inadvertently generated further publicity.

In this particular case, the effects of this phenomenon are appearing in search results, numerous newspaper articles covering the controversy and elsewhere online. I looked at two examples of this phenomenon at work: I ran a search for “president zuma” on Google and was presented with the following:

I then ran an image search for “‘the spear’ zuma” and was presented with these results:

This controversy is trending in South Africa on Twitter too:

A more concrete illustration of how the Streisand Effect has thwarted the ANC’s efforts to censor the work came from a follow-up article focusing on the Goodman Gallery’s response to the ANC’s demands and the tremendous interest in the exhibition:

Traffic to the Goodman Gallery in Johannesburg, which has also been instructed to remove the painting by the ANC’s lawyers, has been higher than usual since City Press published the portrait on Sunday.

“Actually it’s insane here this morning,” said Lisa Koseff, a staff member at the gallery.

“I would say this is the biggest response we’ve ever had to an exhibition.”

What does this all mean? It means that regardless of whether the ANC and the President have a sound legal basis to demand the work’s removal from public view, their actions in pursuit of this (including very public statements expressing outrage and the application launched yesterday) have shone a very bright and public spotlight on what would otherwise have been a relatively short-lived and isolated amusement. The ANC forgets that the work would not just be distributed through the gallery’s website, promotional materials and coverage in the City Press but by every person who was alerted to the controversy and who tweeted, shared or blogged about it, motivated by amusement, outrage at the ANC’s censorship attempts or the simple desire to share it with their connections.

Of course the ANC and the President are entitled to express their outrage, dismay, disgust or any other opinion about the work and are free to make their views public (just as anyone else commenting on the work is entitled to express an opinion about it) but in such a connected world where media-rich news spreads across the globe in moments, they should have given more consideration to the consequences of doing so. In a very real sense, they have made a powerful contribution to their application’s ultimate failure as a means to close this Pandora’s box. As I pointed out in my post dealing with the challenges presented by online defamation:

In the 2007 Digg controversy [link added], Toshiba’s attorney at the time, Michael Avery, summed up this challenge as follows:

If you try to stick up for what you have a legal right to do, and you’re somewhat worse off because of it, that’s an interesting concept.

Update (2012-05-24): The matter is being heard in court today and some interesting comments and rulings are emerging:

Dignity and privacy rights do not apply to Zuma’s office as president of the country or the ANC, his counsel concedes. Very important.

Fiona Snyckers wrote an interesting post for Thought Leader titled “Regulation of the porn industry is not a free speech issue“. Her basic premise is that the porn, or adult entertainment, industry is primarily a commercial endeavour and content the content the industry produces is not protected as “free speech”. Leaving aside whether its desirable to have this sort of adult content available on TV and, by extension, the Web and other media (that is a different debate which I’m not going to explore in this post), Snyckers tries to make an interesting point, albeit on a flawed premise.

In most western-style democracies, pornography does not enjoy the protection of the freedom of speech laws. This is because it is classified as a form of commercial expression, rather than artistic or ideological expression. Have you never wondered, for example, why the advertising industry is subject to such stringent laws? It even has its own control board — the Advertising Standards Authority of South Africa. Advertisers are not permitted to do a whole bunch of things, including explicitly compare their own brand with someone else’s, offend the public’s religious or moral sensibilities, or post billboards of naked people. The list of things they’re not allowed to do is a very long one indeed.

So how come the government is allowed to restrict the advertisers’ freedom of expression in this way? And why does nobody ever protest about it?

It all has to do with the fact that advertising is regarded as a form of commercial, rather than artistic expression. The advertisers are not trying to bare their artistic souls to us — they are trying to sell products. And because selling products is an entirely commercial enterprise, laws have evolved to regulate it.

Snyckers’ first assumption is that commercial expression is not protected under our Bill of Rights. This is not necessarily correct. The right to freedom of expression states the following:

16 Freedom of expression

(1) Everyone has the right to freedom of expression, which includes-

(a) freedom of the press and other media;
(b) freedom to receive or impart information or ideas;
(c) freedom of artistic creativity; and
(d) academic freedom and freedom of scientific research.

(2) The right in subsection (1) does not extend to-

(a) propaganda for war;
(b) incitement of imminent violence; or
(c) advocacy of hatred that is based on race, ethnicity, gender or religion,

and that constitutes incitement to cause harm.

The right does not limit its application to commercial forms of expression. The Bill of Rights applies to both natural persons (humans) as well as juristic persons (such as companies) “taking into account the nature of the right and the nature of any duty imposed by the right”. It is entirely plausible that commercial expression could be protected under this right and we have seen this in cases like Print Media South Africa and Another v Minister of Home Affairs and Another which dealt with an amendment to the Films and Publications Act which established criteria for ratings for sexual and other content. This case centred on whether the amendment violated the right to freedom of expression in the context of adult content (Also take a look at Pierre De Vos’ post titled “On freedom of expression and censorship of magazines” in which he considered this case):

In essence, the contention of the applicants is that the challenged provisions are unconstitutional mainly because the said provisions are a limitation of the entrenched constitutional right to freedom of expression.

Another flawed assumption in Snyckers’ post is that the fact that commercial expression, such as advertising, is regulated is confirmation that commercial expression is not protected. This is not the case at all. The rights in the Bill of Rights are not absolute. The right to freedom of expression is, like the other rights, subject to limitation on certain grounds. This particular right has a number of limitations detailed in section 16 itself (sub-section 2) and is also subject to a general limitations clause which allows for national legislation, for example, to limit a right. Rights are also limited by Courts when they compete with other rights. In defamation cases, for example, Courts often weigh up one party’s right to freedom of expression against another party’s rights to dignity and privacy and attempt to strike a balance between these competing rights.

When it comes to the porn industry, the test a Court applies probably won’t be whether the enterprise is a commercial one and, therefore undeserving of protection under the right to freedom of expression, but rather whether the enterprise, in exercising its right to freedom of expression, infringes on other people’s rights and whether the enterprise’s ability to exercise its right to freedom of expression should be limited?

Update: Mashable has since updated its post to note that while the court filings don’t mention Facebook’s decision to delay activating Timeline for its users, there is apparently a message from Facebook indicating that Timeline will go public on 6 October 2011.

History oriented Web service, Timelines.com, has applied to the United States District Court for the Northern District of Illinois for an order preventing Facebook from releasing its profile revamp, known as Timeline, to the general public.

The reconceptualised Facebook profile exposes users’ historical activity using a fairly clever timeline feature which allows visitors to a user’s profile page to go back in time and view photos, posts and other activities in a user’s past. The Facebook Timeline converts what is currently a fairly narrow view of a user’s life into a life history with past events generally as accessible as more current events. Its a fairly radical approach to Facebook profiles which has privacy advocates concerned, largely because posts on a user’s profile will be given a more comprehensive context based on the user’s publicly accessible life history.

Timelines.com:

The Facebook Timeline:

In the proceedings instituted by Timelines.com, the history site has raised concerns that Facebook’s brand choice, “Timeline”, will effectively obscure the more established Timelines.com trade mark to the point where Web users will identify the trade mark with Facebook’s brand and not with the history site. The effect, allegedly, is that the history site will lose traffic and users due to the confusion. Going further, Timelines.com has contended that Facebook’s planned functionality mirrors its own to a degree –

… a user can record a personal or historic event that he or she wants to share with the world, ranging from a daughter’s one year birthday party or a family wedding to an obscure basketball game or a much more public event like the Inauguration of President Obama. In connection with any such posted event, any user who accesses the website can add additional or new Content for that event.

Facebook understands that this has created confusion, because Timelines recently learned that Facebook is re-directing Internet users attempting to access Timelines’ Facebook page to Facebook’s new product offering which Facebook has confusingly named “Timeline.”Put another way, a user who tries to access Timelines’ Facebook page is, instead, redirected toFacebook’s “Timeline” offering. See www.facebook.com/timelines

Timelines.com alleged that its Facebook page had become inaccessible but when I tried the link, it appeared to have been restored.

This complaint (embedded below) is a combination of a trade mark infringement complaint and a sort of unlawful competition complaint which seems to be premised more on Facebook’s sheer size and its ability to manipulate traffic across its site from Timelines.com’s page to its own Timeline publicity pages. It also reads a little like a monopoly-based competition complaint in the sense that Facebook is, by far, the dominant social network on the Web with more than 800 million users. Assuming that Timelines.com’s allegations about the similarities of the its service and the new Facebook Timeline are accurate, launching the Facebook Timeline with the same name could well put Timelines.com out of business through sheer numbers. The trade mark angle is probably the bigger stick in Timelines.com’s arsenal although what would be more interesting is if this situation gave rise to an anti-trust complaint of some sort. With a user base larger than the United States if it were a country, Facebook is in a unique position to shape much of the social Web, even if that includes shuttering smaller, niche competitors along the way.

The judge in Timelines.com’s patent lawsuit declined the site’s request to disable users from signing on through the developer program. He did, however, order Facebook to report daily how many new developers were enabling the Timeline.

The public launch of Timeline is now at least delayed until Tuesday, when representatives from Facebook and Timelines.com will meet again in front of another federal judge to debate whether an injunction should be issued against Facebook.

There are rumors that Facebook is planning a follow-up to its F8 announcements (where Timeline was revealed) at tomorrow’s Apple event (rumored to be when the next iPhone will be announced) as part of an initiative to bring Apple and Facebook closer together. Timelines.com’s complaint could be its last attempt to stave off its own extinction and a real spanner in the works for Facebook, particularly if it has merit.